Sener v. McCormick

Opinion by Beaver, J., It is not seriously contended, as we understand it, that the plaintiff was entitled to recover, under the statement originally filed, in which he sought to recover upon two checks: the first payable to the order of Bensinger, which showed no liability on the part of the defendant, which seems to have disappeared from the case entirely in the trial, and the second, although payable to the order of the defendant, was admitted by the statement to be the proceeds of a note upon which the plaintiff and defendant were joint indorsers, the note itself, as plaintiff expressly admitted upon cross-examination, being still owned by the bank which had discounted it. The plaintiff, therefore, sought to amend his statement by introducing as the cause of action a note given as the second renewal of that of which the check declared upon was the proceeds, and this upon the ground that the plaintiff had paid, as he alleged, the last renewal to the bank. How he could have done so, while the bank still owned the first note, presents a difficulty we are not called upon to discuss. Was the amendment allowable? The plaintiff, being a joint indorser with the defendant, if he paid the note, would have been entitled only to contribution for the one half thereof, even if the note alleged to have been paid by him had not been barred by the statute of limitations: Reber’s Est.,.15 Pa. Superior Ct. 122. The amendment would have introduced not only a new cause of action but a new ground of action. We have lately discussed the general principle of amendments in Riley v. Prudential Insurance Co., 12 Pa. Superior Ct. 561, in which it is stated as a general principle: “ It is true that the courts are disposed to be liberal in the allowance of amendments either as [591] to parties or pleadings, but this is never done when the opposite party is thereby deprived of any substantial right.” It is clear that an amendment allowing the plaintiff to introduce, as his cause of action, the note dated September 28, 1889, maturing December 31, 1889, would have prevented the defendant from pleading the bar of the statute of limitations. In Grier Bros. v. Northern Assurance Co., 183 Pa. 334, it is said: “ The doctrine that a new cause of action cannot be introduced or new parties brought in, or a new subject-matter presented, or a fatal and material defect in the pleadings be corrected, after the statute of limitations has become a bar, is so familiar to the profession and has been declared by this court and by the courts of last resort of many other states of the Union so frequently that an extended review of the authorities is quite unnecessary.” Upon a careful consideration of the whole case, we can see no error in the action of' the court below, declining to allow the amendment offered by the plaintiff and entering a compulsory nonsuit. Judgment affirmed.